10 March 2005

What's with the elephants?

The "elephant" quote is one of my favourites. My lecturer for Judicial Review - Melissa Poole - introduced me to in many years ago.
The full quote is as follows (Maxwell v Department of Trade and Industry[1974] 2 All ER 122 at 131):

From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise.
As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags.
This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.
It is pertinent in this connection to recall what Lord Shaw of Dunfermline said in Local Government Board v Arlidge ([1914-15] All ER Rep 1 at 10):
'And the assumption that the methods of natural justice are ex necessitate those of courts of justice is wholly unfounded ... In so far as the term "natural justice" means that a result or process should be just, it is a harmless though it may be a high-sounding expression; in so far as it attempts to reflect the
old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is
vacuous.'
For the purposes of my judgment I intend to ask myself
this simple question: did the [decision-maker] act fairly towards the plaintiff?

Cool eh?! And kinda says a lot about the law generally.
Hence the name of this blog.

Course Outline

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.